38 Iowa 446 | Iowa | 1874
— I. It is urged by appellant that, under section 3442 of the Revision, a foreign corporation only can be required to give security for costs.
Section 3442 of the Revision provides, that if a defendant shall at any time before answering file an affidavit, stating that he has a good defense in whole or in part, the plaintiff if he be a non-resident or a corporation, before any further proceeding in the cause, shall file in the Clerk’s office a bond, etc.
It is not required that the facts constituting this defense shall be set out in this affidavit. If such wei’e to be done there would be no propriety in requiring the affidavit to be filed
This section must refer to the condition of the plaintiff, as that he is a non-resident, a corporation, or has become a nonresident since the commencement of the suit. These facts may be controverted by the plaintiff.
But as to the defense, it seems to us that it is only necessary that defendant should, in the language of § 3442, file an affidavit stating that he has a good defense.
III. It is further objected that the affidavit does not in terms state that plaintiff is a corporation. This statement, under the circumstances of this case, is not necessary. The petition states that the plaintiff is a corporation duly organized under the laws of this State. The name fully indicates that plaintiff is not a natural person. If not a corporation, plaintiff has no right to maintain this action.
There can be no necessity that the affidavit should state that which, as against the plaintiff, appears conclusively of record.
By pointing out specific objections, and omitting the mention of this, plaintiff must be regarded as having waived it, even if it be conceded to be a valid objection, which we do not now determine.
YI. It is further claimed that the court erred in dismissing the action on motion of defendant, after plaintiff had given notice of appeal.
An order that plaintiff secure the costs, without more, is not an order from which an appeal can be taken. It does not fall under any of the provisions of § 2632 of the Revision.
YII. Lastly, it is urged that the court erred in dismissing the action without fixing a time, after the filing of the motion to dismiss, within which the bond should be filed.
The order of the court does not technically comply with the provisions of § -3443 of the Revision. Yet we think the cause should not, for that reason be reversed.
The court did, when it passed upon the motion for security of costs, fix a time within which the bond should be , filed, which elapsed several days before the motion to dismiss was filed. The whole course of plaintiff, as indicated in the premature service of notice of appeal, evinces a 'determination not to
The plaintiff might have had such time fixed if it had so desired, and had called the attention of the court to that fact.
If plaintiff had moved to set aside the order of dismissal, and had offered to file the bond, its standing here would be quite different.
"We discover no error, to plaintiff’s prejudice, in the record.
Affirmed.